Panel: ‘but-for’ causation needed to show retaliation

An employee could not recover under the Rehabilitation Act of 1973 based on a jury finding that retaliation for his complaints about disability discrimination was a motivating factor in — though not the “but-for cause” of — an adverse employment action, the 1st U.S. Circuit Court of Appeals has found.

The plaintiff claimed to be entitled to the mixed-motive remedies available under Title VII, 42 U.S.C. §2000e-2(m).

“The Rehabilitation Act borrows its remedial scheme from Title VII, but it does not borrow the causation standard set out in section 2000e-2(m),” Judge Bruce M. Selya wrote for the unanimous 1st Circuit panel.

“The causation standard incorporated in the Rehabilitation Act makes unlawful an employer’s retaliation because of an employee’s opposition to discriminatory practices,” Selya continued. “It thus requires retaliation to be the but-for cause of an adverse employment action in order for the plaintiff to obtain a remedy.”

The 24-page decision is Palmquist v. Shinseki.

David G. Webbert of Maine was counsel for the plaintiff employee. The defendant employer was represented by Daniel Tenny of the U.S. Department of Justice.

Employment history

During his military service, plaintiff Mark S. Palmquist was involved in a helicopter crash that left him with a residual brain injury. As a disabled veteran, he was entitled to a preference in federal employment.

In spring 2004, the Department of Veterans Affairs hired the plaintiff as a medical support assistant at a medical center. The hiring official, Sherry Aichner, became his supervisor.

Roughly four months later, the plaintiff applied for a promotion but did not receive an interview. He believed that the VA had not fully honored his veteran’s preference, and he told Aichner that he was going to complain to both the agency’s equal employment opportunity specialist and his congressman. The complaints were promptly made.

In February 2006, the plaintiff sought a position as a rating veterans service representative — or RVSR — with the VA office in Nashville, Tenn. A pair of VA employees, Delores Tate and Glenda Taylor, interviewed the plaintiff for the position.

Tate telephoned Aichner to inquire about the plaintiff’s qualifications. While Aichner made it clear that the plaintiff was energetic and a quick learner, she also mentioned the plaintiff’s tendency to “go[] overboard” on behalf of veterans and mentioned that he had applied unsuccessfully for various promotions in the past. She reported that the plaintiff “[u]ses his service connected preference and watches carefully to make sure he gets an interview,” noting that he had once gone “to [the] patient [r]epresentative” when he did not get one.

Tate did not recommend the plaintiff for the RVSR position, and he did not receive it. Although Tate testified that she did not think Aichner was trying to discourage her from hiring the plaintiff, she considered the unfavorable aspects of Aichner’s reference as “one factor” in her decision.

A jury found that while retaliation was a motivating factor in the decision not to promote the plaintiff to the RVSR position, it was not the but-for cause of that decision. Based on those findings, the trial judge entered judgment for the defendant.

The plaintiff then moved to amend the judgment, contending that because the jury found that retaliation was a factor in the VA’s decision not to promote him, the Rehabilitation Act necessarily afforded him a remedy. The motion was denied.

Causation standard

In the Civil Rights Act of 1991, Congress amended Title VII by making an employment practice unlawful whenever a proscribed factor “was a motivating factor” for that practice — even though other factors were part of the motivation.

The plaintiff contended that he was entitled to the mixed-motive remedies in Title VII because section 505 of the Rehabilitation Act explicitly provides that “[t]he remedies, procedures, and rights set forth in … 42 U.S.C. §2000e-5(f) through (k) … shall be available, with respect to any complaint under [the Rehabilitation Act].”

But in order to benefit from those mixed-motive remedies, the 1st Circuit responded, a claimant must prove a violation of section 2000e-2(m), which prohibits the use of “race, color, religion, sex, or national origin” as a motivating factor for any employment practice.

“The plaintiff invites us to find that these remedies are available in retaliation suits brought under the Rehabilitation Act,” Selya said.

The 1st Circuit, however, declined the invitation.

“To do otherwise would require us to ignore the plain text of section 2000e-5(g)(2)(B), which nowhere mentions retaliation,” Selya said.

The 1st Circuit emphasized that the Rehabilitation Act borrowed its causation standard from the Americans with Disabilities Act, which states that no person shall retaliate against an individual “because such individual has opposed any [discriminatory] act or practice.”

That language “contrasts sharply with the ‘motivating factor’ standard used in section 2000e-2(m),” Selya observed. “It is, however, very similar to the more rigorous causation standard used in the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§621-634, which makes it unlawful to discriminate against an individual ‘because of such individual’s age.’”

While acknowledging that section 505 of the Rehabilitation Act expressly incorporated the remedies, procedures and rights from Title VII, the 1st Circuit cautioned that section 501 of the Rehabilitation Act also incorporated a liability standard drawn from the ADA.

“Were we to read section 505 as expansively as the plaintiff suggests, the selective incorporation of the ADA provisions through section 501 would be rendered nugatory because Title VII would control both the liability standard and the remedy,” Selya wrote. “The only way to give the wording of section 501 any practical effect is to find that the ADA’s but-for causation standard controls whether a defendant is liable for retaliation. Where, as here, that standard has not been satisfied, the Rehabilitation Act dictates that Title VII’s mixed-motive remedies do not pertain.”